When Justice is Less than Blind

The nation's eyes have turned to Louisiana once again as the gulf coast starts the recovery from yet another natural disaster. I was originally supposed to travel to New Orleans this week to play a role, albeit minor, in addressing a different, troubling development in the region, one that predates the devastation of Hurricane Katrina three years ago. I was scheduled to testify as an expert in a post-trial hearing regarding racial bias in the legal system, yet another problem with which Louisiana appears all too familiar.

The title of this post (as well as the phrase "racial bias in the legal system") might typically lead you to think about suspects and defendants receiving differential treatment based on their race. This is, indeed, a persistent problem in the criminal justice system of the United States (and other nations), and it's a topic to which this blog will devote attention in the near future. But this entry focuses on a different type of bias in the system, one that has potential impactson the treatment of defendants at trial. Specifically, this post addresses the influence of race on how juries are selected.

The state of Louisiana is divided into parishes. Jefferson Parish (right, in red) includes most of the suburbs of New Orleans. At the time of the 2000 Census, Jefferson Parish had an African-American population of 23%. In 1990 that rate was 18%. These numbers render it all the more striking that in the preceding two decades, Jefferson Parish has had 18 murder trials that ended with a conviction and death sentence, and of the 216 jurors who heard these cases, only 9 were Black. Seven of the 18 juries had but a single Black juror. Ten juries had no Black jurors at all. (Quick note of full disclosure: there were 2 additional trials ending with a death sentence during this time, but the racial demographics of those juries were not available to the researchers analyzing the data.)

If you do the math, this means that 4% of the jurors on capital murder trials in Jefferson Parish over the past two decades have been Black, a rate far lower than the 18-23% of African-Americans found in the population at large. In fact, the population rate suggests that a racially representative jury in Jefferson Parish would have 2 or 3 Black jurors, but during this time period, only 1 of the capital murder juries had as many as 2 Black members.

What explains the statistical aberration that is the racial makeup of Jefferson Parish capital juries? There are a number of factors that can contribute to nonrepresentative juries anywhere. In the U.S. (as well as other countries that use jury trials, including Canada, Australia, and New Zealand), racial minorities tend to be underrepresented on voter rolls, driver's license lists, and other public records often used to compile source lists for jury duty. In addition, once jury duty summonses are sent out, non-Whites are less likely to report as requested than are White Americans. Some have speculated that this disparity reflects institutional mistrust of the legal system among many Black Americans, but it unquestionably reflects the fact that a disproportionately high rate of summonses sent to Blacks are returned by the post office to the courthouse as undeliverable.

However, those who have catalogued and analyzed the Jefferson Parish cases point to a different explanation for what has happened there, namely that local prosecutors have systematically gone out of their way to exclude Black citizens from serving as jurors in these trials. How would prosecutors do this? In large part by making use of a jury selection practice known as the peremptory challenge.

In American courtrooms, there are two ways in which attorneys can remove prospective jurors from a jury. In the first, the challenge for cause, attorneys must convince the judge that a prospective juror won't be able to remain impartial, and then the individual is removed. The other option is to use one of a fixed number of peremptory challenges. Attorneys are under no obligation to offer any evidence of potential juror bias in using a peremptory; in fact, traditionally no explanation at all is given.

The open-ended and discretionary nature of the peremptory challenge renders it an ideal weapon in the arsenal of an attorney seeking to shape the makeup of the jury to which she will argue her case. Because jury selection questioning is typically brief, attorneys usually have only limited, superficial information about the jurors on which to base their challenges. So what do they do? They make decisions based on hunches, gut impressions, and stereotypes.

And one of the operating stereotypes of many attorneys seems to be that Black jurors are not particularly sympathetic to the prosecution. An assistant district attorney in Philadelphia named Jack McMahon even recorded his endorsement of such stereotypes about juror race in a now notorious training video for prosecutors. In the video, McMahon urges avoidance of "Blacks from low income areas" because of "resentment" of law enforcement, and further suggests that young female Black jurors and other Blacks who are "real educated" pose problems for the prosecution, as do older Black women who may sympathize with Black male defendants out of "maternal instinct."

Is there a problem with attorneys basing their jury selection challenges on stereotypes? One might argue that it depends on the accuracy of these stereotypes, an issue that I discussed more generally in a previous post not about the legal system. But in the legal domain, accuracy isn't relevant. That's because in 1986, the U.S. Supreme Court ruled that it was unconstitutional for attorneys to base their peremptory challenges on a prospective juror's race (Batson v. Kentucky). Several years later, the prohibition was extended to prohibit gender-based peremptories as well. In both cases, the basis for the ruling was that such peremptory challenges violated the rights of all citizens, regardless of race or gender, to serve as jurors.

So what's going on in Jefferson Parish, Louisiana? The 18 murder trials I described above all happened after the Supreme Court's ruling in Batson. If the Court ruled that attorneys cannot base peremptories on juror race, why is it that only 4% of jurors on these capital murder trials have been Black? Well, it turns out that it's just too easy for attorneys to get around the Batson ruling. As long as they're able to provide the judge with a reasonable race-neutral explanation for their peremptory use, they won't be found in violation of the rules. And if there's one thing we know from psychological research on judgment and decision-making, it's that people are remarkably good at coming up with plausibly neutral explanations for potentially biased choices.

Indeed, I and a colleague, Mike Norton of Harvard, conducted an experiment that illustrated this process in a jury selection setting. We asked college students, law students, and trial attorneys to make judgments in a jury selection simulation involving the trial of a Black defendant. We presented them with two prospective jurors, A and B, and asked participants to assume the role of prosecutor in the case. When photos revealed that Juror A was Black and Juror B was White, participants were more likely to use a peremptory challenge to remove A. But when we kept the information about Jurors A and B the same and simply switched their photos, suddenly B, now the Black juror, was more likely to be challenged. In other words, regardless of the personal and ideological information provided for each prospective juror, participants were basing their challenge decisions on race. And when we asked participants to justify their peremptories? They never talked about race, instead inflating the importance of race-neutral information that supported their challenge, in true top-down fashion.

The peremptory challenge is a fascinatingly problematic aspect of our legal system to study, a controversial topic that Mike Norton and I tackle from a psychological perspective in an article in the September 2008 issue of American Psychologst. One the one hand, the presumed intent of the peremptory is to enable litigants to have some say over who will sit in judgment of them at trial, a noble goal with which few would take issue. To the extent that attorneys use peremptories to pursue an impartial jury, the practice doesn't seem problematic. But on the other hand, the peremptory is a simple way for attorneys to manipulate the composition of a jury to their perceived advantage. As the McMahon video demonstrates, attorneys who want to win cases don't strive for impartial juries, but rather juries partial to their side of things. And sometimes, in spite of the Supreme Court's efforts, this desire to win cases seems to include jury selection strategies influenced by race, a conclusion consistent with the troubling data coming out of Jefferson Parish.

It is a good point that the next step up on jury selection would be a question of even if the lawyer presents a "race-neutral" reason for excluding the minority juror, that this is not sufficient proof that the "real" reason might be race based. If there is a pattern of excluding minorities from juries and this can be proven, then at some point a new analysis might be necessary to guarantee a fair trial.
Sincerely,
Glen R. Graham, Tulsa Criminal Attorney, http://www.glenrgraham.com